Steve Russell’s short commentary on the English common law of tort and tribal governance was a delight to read.

Two points in somewhat in response and largely in agreement. First, I really do think more tribes should reconsider what Anglo-American tort law does to their governance culture. Tribes should do this for all of the law that they borrow deriving from English common law. Many tribes (most) already have rejected the formality and formalism of civil procedure and evidence rules, rules the derive from rules designed to exclude the lower classes from the judicial system. That said, many tribes politically and economically need to integrate seamlessly with surrounding communities and have chosen to borrow and adapt the law of their neighbors. It would be helpful if tribes actually made a choice, after legislative consideration. A clear determination in cases such as Plains Commerce Bank and the Crazy Horse Malt Liquor case could have precluded the obfuscation on traditional tribal law that defendants (and some judges) used to complicate those cases. Nonmember defendants have a legitimate beef that they don’t know the law applied to them.

Second, I’ve argued before that tribal courts should continue to assert jurisdiction over nonconsenting nonmembers. It’s baffling to me that federal courts can issue orders enjoining tribal courts from engaging in their own business (though the court in a recent case out of Navajo got around that by enjoining the tribal court plaintiffs). Steve raises an excellent point about using tort law as a means of excluding what they used to call “bad men.” Tribal judgments can be sufficient to keep undesireables away. Not always, see the Lara case, and some tribes might not want to effectively exclude a particular defendant.